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Four medical liability myths

November 7th, 2012

by Laura Hale Brockway, ELS

Understanding how medicine and the law intersect is complicated. It can be tedious. Yet, a thorough understanding of medical liability can help keep you out of the courtroom and may even help you practice safe medicine. The following is a list of some common and prevailing myths about medical liability, each dispelled by TMLT claim and risk management experts.

Myth 1: Because of medical liability reform, litigation is no longer a problem for doctors.

Truth: While the rate of litigation has been greatly reduced, medical liability reform did not hinder a patient’s ability to sue for legitimate injuries incurred during medical treatment. “It is also important to remember that juries are still willing to award substantial damages when they feel the physician failed to meet the standard of care or failed in communicating with the patient,” says Jill McLain from TMLT. The bottom line — litigation is still a concern.

Myth 2: I should contact TMLT to report a claim only after I’ve been officially “served” with a citation and petition.

Truth: Your policy requires you to notify TMLT as soon as reasonably possible after becoming aware of any claim covered by your policy. TMLT claim staff may have limited time to investigate and evaluate the claim, and any delay in reporting could compromise your defense.

Please notify TMLT immediately if you receive any of the following:

A demand for compensation — any written communication from or on behalf of a patient that seeks monetary payment or other compensation because of a perceived error in treatment or an unexpected outcome.

A notice of claim letter — a letter that refers to Civil Practice and Remedies Code Section 74.052 or refers to a notice of claim. Upon receipt of a 74.052 letter, a physician and his or her insurer have 60 days to investigate and evaluate the claim.

A lawsuit — will contain a citation (which informs you of a lawsuit) and a petition (which lists the plaintiff versus the defendant). A lawsuit will also include the allegations made against you. The law sets out a mandatory timeframe in which an answer must be filed on your behalf. Therefore, once you are served with a citation and petition, TMLT has a limited time to respond by retaining a defense attorney to file an answer on your behalf.

Additionally, if you receive a records request from an attorney or a request for a deposition in a case involving medical liability, contact TMLT for advice on how to respond to the request.

Myth 3: A TMB complaint is no big deal — I can just respond by writing a letter.

Truth: It is not advisable to respond to a TMB complaint letter or notice without first contacting TMLT or obtaining legal counsel.

A violation of any of the laws and regulations that govern the actions of physicians can lead to disciplinary action by the Texas Medical Board (TMB). The consequences of a single board action can range from a dismissal to license revocation; enormous expenditure of stress and time; and damage to a physician’s professional reputation. Therefore, it is essential that you seek an attorney’s expertise early to respond to the TMB and present the information in an appropriate way.

TMLT policies provide coverage that will reimburse you for reasonable legal expenses and expert witness fees incurred in defending a TMB complaint (up to $25,000 per policy period, subject to the terms and conditions of the policy). The policy states that you have 60 days to report an insured event to receive reimbursement for covered expenses. To preserve coverage, it is extremely important to pay attention to the 60-day window in which to report knowledge of a proceeding.

Myth 4: Physicians are allowed to “correct” past entries in medical records after an unexpected outcome or notice of claim.

Truth: It is never acceptable to alter or correct a medical record after you have been notified of a claim.

Upon reviewing the medical record when served with a notice of claim, you may be tempted to add information that you believe will assist in your defense. Resist this temptation. Plaintiff’s attorneys will try to use this information to discredit you, suggesting that you did something wrong and are trying to conceal it.

The TMLT claim staff recommends that you place the medical record in a secure location to protect the authenticity and avoid any temptation to alter information.

Conclusion

Physicians and their staffs face daily challenges in the delivery of quality, safe health care. There are no doubt more myths about medical liability, but an informed physician with a conscientious commitment to patients and effective communication skills may avoid complaints and lawsuits.

Do you have any tips for avoiding malpractice claims? Please share in our comments section.